Why did the USCIS recently make EB-5 visas unavailable for Chinese investors?

I am Chinese and was considering immigrating to the United States under EB-5 visa program. However, I just read in the news that EB-5 visas are now unavailable for China. How long will this Chinese EB-5 visa unavailability last? Does it affect all Chinese? Why did the USCIS make EB-5 visas unavailable for Chinese investors?

Answers

There are only a certain number of visas issued per year to each country. In the EB-5 category there were more applications from China than visas available. There will be a whole new quota of visas available for Chinese nationals on October 1, 2014, which is the beginning of the new Fiscal year.

There is a limitation on the immigrant visas available to persons from any particular country in any particular fiscal year. The government''s fiscal year 2014 ends on September 30 and the new fiscal year 2015 starts on October 1, 2014. Currently, the cap available for Chinese mainland-born nationals has been reached because many EB-5 petitions have been filed by the Chinese nationals. Currently, there is a short wait until visa numbers become available again on October 1 for Chinese nationals to proceed with consular processing of their immigrant visas abroad or adjustment of status (if in the United States in another lawful immigration status). You should still consider filing a I-526 petition because the average processing times for I-526 petitions are about 10-12 months. Even if the visa numbers retrogress again around May 2015, given the current processing times for I-526 petitions, there may be a relatively short waiting period for you and any immediate family members (spouse and unmarried children under age 21) to immigrate to the United States. However, if you do not file the I-526 petition, you do not secure a place in line for an immigrant visa.

There are, and always have been, limits on the number of visas the U.S. Department of State (not USCIS) makes available for each country and for each type of visa. With the massive demand by investors from China for EB-5 visas, the quota was finally met. While currently listed as unavailable, the new financial year (October 1, 2014) should bring them back briefly, before delays setting in in 2015. Planning for these timelines is essential, and retaining experienced immigration counsel is invaluable.

The unavailability is for Chinese EB-5 immigrant visas, and it will last only for one month. Then, the new fiscal year (2015) will start on October 1, 2014, and 10,000 new visa numbers will become available for worldwide EB-5 use. The problem occurred because 85 percent to 90 percent of the EB-5 immigrant visa numbers were being used by Chinese-born individuals and there were not enough available EB-5 visa numbers for the rest of the world (investors from countries other than China). This is the first time in the 24-year history of EB-5 that such action became necessary. Due to the popularity of the EB-5 program with Chinese investors, however, it is unlikely to be the last time such action might be necessary. The current trend is that 10,000 EB-5 immigrant visa numbers (or at least China''s allotment of those numbers) will be used up earlier in this coming fiscal year (FY 2015), maybe as early as May or June of 2015.

John J Downey

Immigration Attorney

Answered onSeptember 2, 2014

These are quotas provided by the Department of State and not Immigration. They only allow a certain number of people from a country to receive visas each year. A new quota will be in place by October. You should move quickly if you wish to review projects for investment.

There are only so many EB-5 visas issued per country per year. In this case, the Chinese demand exceeded the supply and as such, causes a waiting period before the Chinese investor can apply for conditional permanent residency. To be put in the waiting line the Chinese investor will file the investor petition and, as of 2015, the waiting line before the Chinese investor can apply for conditional permanent residency will be two years.

There is limit to the number of visas that can be given to citizens of any one country in a single year, and China exceeded this limit recently. The U.S. government''s year starts on October 1 each year, so I am hopeful that more EB-5 visas will be available after October 1, 2014. In any event, if you file for the EB-5 today, it usually takes from 9-14 months to get the approval, so even if there becomes a waiting list, by the time the case is approved, you should be able to get the visa right away.

There are only 10,000 visa numbers for EB-5. This number includes the investor and family members. If each investor has a spouse and two children, that means four visa numbers taken. This means in each year, we could have approximately 2,500 EB-5 investors with families receiving green cards. In addition to the overall visa numbers, there is a per country visa cap. According to the USCIS, they have received over 8,300 EB-5 petitions and they are adjudicating a majority of which are from China. So, when worldwide visa numbers are close to being used, it triggers the per country cap and they cannot allow anymore from China. This visa number quota will open briefly at the beginning of October, but it is expected to retrogress around April or May next year and stay retrogressed for a couple of years for Mainland China-born investors.

The initial shortage of visas is caused by the allocation of visas set aside for the EB-5 program being used up. However, visas will become available again in September. A longer term issue for investors born in mainland China will be retrogression. This has not yet occurred, but is likely to occur next year. You should consult an experienced immigration attorney to understand the effect of retrogression and how it may impact your intended EB-5 investment and visa application.

There is a quota of 10,000 EB-5 visas each year with no more than seven percent going to any one country. The government''s fiscal year expires on September 30, so on October 1 more visas will open up. It is not known next year when the quota will be exhausted. If it is exhausted and then you are approved, you will be on a waiting list until more visas are available, so go ahead and apply if you are eligible and interested.

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